Imágenes de páginas
PDF
EPUB

sir E. Coke very justly to observe,1 that 'all subjects are equally bounden to their allegiance, as if they had takes the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same.' The sanction of at oath, it is true, in case of violation of duty, makes the guilt still more accumulated by superadding perjury to treason: but it does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion.

"Allegiance, both express and implied, is, however, distinguished by the law into sorts or species,—the one natural, the other local; the former being also perpetual the latter temporary. Natural allegiance is such as is dne from all men born within the dominions of the crown, immediately on their birth.2 For immediately upon their birth, they are under the king's protection, at a time too when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude, which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance, nor any thing but the united concurrence of the legislature.9 An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now; for it is a principle of universal law,4 that the natural-born subject of one prince cannot by any act of his own—no, not by swearing allegiance to another—put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the

• 2 Inst. 121. 2 7 Rep. 7. 1 2 P. Wms. 121.

4 1 Hale, P. C. 68; and Pufendorf, de Offic. Hom, et Civ. lib. ii. c. xviii. § 15.

concurrent act of that prince to whom it was first due.1 Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties of owing service to two masters, and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince.

"Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection ;2 and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only; and that for this reason, evidently founded upon the nature of government, that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. As, therefore, the prince is always under a constant tie to protect his natural-born subjects at all times and in all countries, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien only during his residence in this realm, the allegiance of the alien is confined, in point of time, to the duration of such his residence, and, in point of locality, to the dominions of the British empire. From which considerations sir Matthew Hale3 deduces this consequence: that though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty,

1 Doe d. Thomas v. Acklam, 2 B. & C. 779. Achrauty t>. Mulcaster, 5 B. & C. 771.

• 7 Rep. 6. 3 1 Hale, P. C. 60.

to practise any thing against his crown and dignity: wherefore, although the true prince regain his sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death, because of the breach of that temporary allegiance which was due to him as a king de facto. And upon this footing, after Edward IV. recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI. were capitally punished, though Henry had been declared an usurper by parliament.

"This oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person and blood royal; and for the misapplication of their allegiance,1 namely, to the regal capacity or crown, exclusive of the person of the king, were the Spensere banished in the reign of Edward II.

"This allegiance, then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down of local and temporary, or universal and perpetual. Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king's legiona, and can never forfeit by any distance of time or place, but only by their own misbehaviour. The same is also in some degree the case of aliens, though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall here endeavour to chalk out some of the principal lines whereby they are distinguished from natives.

"An alien born may purchase lands, or other estates; 1 1 Hale, P. C. 67.

but not for his own use, for the crown is thereupon entitled to them.1 If an alien could acquire a permanent property in lands, he must owe an allegiance equally permanent with that property to the crown of England, which would probably be inconsistent with that which he owes to his own natural liege lord; besides that thereby the nation might in time be subject to foreign influence, and suffer other inconveniences. Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation ;2 for personal estate is of a transitory and movable nature; and besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people. Also an alien may bring an action for personal property, and may make a will, and dispose of his personal estate.3 When I mention these rights of an alien, I must be understood of alien friends only; for alien enemies have no rights nor privileges, unless by the special favour of the crown, during time of war.

"When I say that an alien is one who is born out of the king's dominions or allegiance, this also must be understood with some restrictions. The common law, indeed, stood absolutely so, with only a very few exceptions; so that a particular act of parliament became necessary after the Restoration 4 for the naturalisation of children of his majesty's English subjects born in foreign countries during the late troubles. And this maxim of law proceeded on the general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects;4 for as the father,

1 Co. Litt. 2. 1 7 Rep. 17. * Latw. 34.

1 Stat . 29 Car. II. c vi. » 7 Rep. 18.

though in a foreign country, owes not even a local allegiance to the prince to whom he is sent, so with regard to the son also, he was held (by a kind of post liminium) to be born under the king of England's allegiance, represented by his father the ambassador. To encourage also foreign commerce, it was enacted, by statute 25 Ed. III. st. 2, that all children born abroad, provided both their parents were at the time of his birth in allegiance of the king, and the mother had passed the seas by her mother's consent, might inherit as if born in England; and accordingly it hath been so adjudged in behalf of foreign merchants.1 But by several modern statutes» these restrictions are taken off; so that all children, born out of the king's legiance, whose fathers, or grandfathers by the father's side, were natural-born subjects, are now deemed to be natural-born subjects themselves, to all intents and purposes; unless their said ancestors were attainted, or banished beyond sea, for high treason, or were, at the birth of such children, in the service of a prince at enmity with Great Britain. Yet the grandchildren of such ancestors shall not be enabled to claim any estate or interest, unless the claim be made within five years after the same shall accrue.

"The children of aliens born here in England are, generally speaking, natural-born subjects, and entitled to all the privileges of such. A denizen^ is an alien born, but who has obtained, ex donatione regis, letters patent to make him an.English subject, a high and incommunicable branch of the royal prerogative.3 A denizen is a kind of middle state between an alien and a natural-born subject, and partakes of both of them. He may take lands by

1 Cro. Car. 601. Mar. 91. Jenk. Cent. 3.

* Stat. 7 Anne, c. v. 4 Geo. II. c. xxi.; and 13 Geo. III. c. xxi.

5 7 Rep. Calvin's case, 25.

« AnteriorContinuar »